Mayank Jat vs The State Of Madhya Pradesh
2024 Latest Caselaw 3145 MP

Madhya Pradesh High Court

Mayank Jat vs The State Of Madhya Pradesh on 2 February, 2024

Author: Vijay Kumar Shukla

Bench: Vijay Kumar Shukla

                                                                 1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                        CRA No. 11381 of 2022
                                            (MAYANK JAT AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                           Dated : 02-02-2024
                                  Shri Ajay Bagadia - Senior Advocate with Shri Gajendra Singh

                           Chouhan, learned counsel for the appellant.
                                  Shri Anand Soni - Additional Advocate General with Shri Vishal
                           Sanothiya, learned counsel for the respondent/state.

The respondent-State filed IA No.16575/2023, which is an application for

cancellation of suspension of jail sentence granted to the appellant no.1 Mayank Jat vide order dated 21.12.2022.

Learned counsel for the respondent/state submits that the order of suspension of jail sentence of appellant no.1 has been passed on suppression of facts, misrepresentation and on irrelevant material.

Per contra, learned counsel for the appellant submits that there is no suppression or misrepresentation of facts before this court and the order is passed on consideration of relevant material. It is further argued that the ground raised by the respondent cannot be a ground for cancellation of suspension of

jail sentence.

Appellant has been convicted under Section 307/149 (3 counts), 148 of IPC and u/s 25(1-B)(A) and 27 of Arms Act and sentenced him to undergo 06 years RI with fine of Rs.200/-, 01 years RI with fine of Rs.200/-, 02 years RI with fine of Rs.200/- and 04 years RI with fine of Rs.200/- adn appellants Kishor Singh and Yogendra have been convicted under Section 307/149 (3 counts) and 148 of IPC and sentenced them to undergo 06 years RI with fine of Rs.200/- for each count and 01 years of RI with fine of Rs.200/- for each with default stipulation vide judgement dated 26.11.2022 passed

by the 3rd Additional Sessions Judge, Ratlam, District Ratlam in S.T. No.184/2012.

It would be appropriate to reproduce the order dated 21.12.2022, whereby, the jail sentence of the appellant alongwith other co-convicts was suspended, which reads as under:-

Lea rn ed counsel for the appellants submits that it is alleged against the appellants that they assaulted the complainant and other injured persons with kicks and fists. Nothing has been seized from the possession of the appellants. They have falsely been implicated in the matter. Appellants were o n bail during trial and did not misuse liberty granted to them. Learned Trial Court has not properly appreciated the evidence placed on record and there is no likelihood of hearing of appeal in near future. Hence, prays that application for suspension of sentence be allowed.

Learned Panel Lawyer for the respondent/State opposes the prayer for suspension of remaining jail sentence and grant of bail to the appellant.

Having considered the rival submissions, material pointed out by counsel for the appellants; specially the fact that nothing has been seized from the possession of the appellants and other facts and circumstances of the case, this Court is of the considered view that it is a fit case for suspension of the sentence and grant of bail to the appellants. Hence, without expressing any opinion on merits of the matter I.A. No.16157/2022, 16156/2022 and 16158/2022 is allowed and jail sentence of the appellants shall remain suspended.

Learned counsel for the respondent submits that it was incorrectly stated before the court that there was no seizure from the possession of the appellant no.1. He referred the statement of complainant Ritesh PW-6, Ritesh Nath PW/7 and Ravi PW-8. All the witnesses have stated that the accused Yatindra fired on Ritesh which hit on finger of the left hand and the present appellant also fired on him, which just passed near his body but with an intention to kill the complainant, he has fired on them.

It is argued that from the possession of the present appellant, a revolver

was seized on his memo vide Exb.P/19. The said seizure has been proved by PW-20 PS Tomar and also by independent witness PW-17 Dinesh. Apart from that, the prosecution has also proved that the aforesaid seized pistol was sent for FSL for ballistic report. He referred Exb.P-30. In the said report, it has been found that the said pistol was in working condition and its fire pin was found to be broken and the marks/sign of firing from the said pistol were found. Thus, the order of suspension of jail sentence of appellant no.1 Mayank Jat has been passed on the contention that nothing was seized from the possession of appellant no.1. Apart from that, the seizure memo which has been proved by PW-20 PS Tomar and independent witness PW-17 Dinesh and the ballistic report Exb.P-30 have not been considered. The applicant is also having criminal record of eight cases. The order of suspension of jail sentence of the appellant no.1 is not as per the consideration for suspension of sentence laid down by the Apex Court in para 30 in the case of Omprakash Sahni Vs. Jai Shankar Chaudhary and Another reported in (2023) 6 SCC 123. In para 30, the following factors have been laid down for consideration of suspension of jail sentence:-

"1) When the citizens are scared to lead a peaceful life and nature of the offence(s) in question (offence of murder in the present case), usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy.

There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. The Supreme Court does not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the

scale of collective cry and desire. The societal concern has to be kept in view of juxtaposition of individual liberty. Regard being had to the said parameter the Supreme Court is inclined to think that the social concern in that case at hand deserves to be given priority over lifting the restriction on liberty of the accused.

2) Section 389 Cr.P.C deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If accused is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

3) The appellate court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail."

It is argued that as per Clause No.1, the criminal antecedents are also relevant factor while passing the order of suspension of jail sentence. He also referred the judgment of co-ordinate bench passed in the case of Manoj Chaturvedi VS. State of MP decided on 24.08.2022 in M.Cr.C No.39159/2022, where the court has held that suppression of fact which may have bearing on outcome of the case will be material suppression of fact and would dis-entitle the applicant for the relief sought by him.

Per contra, learned counsel for the appellant submits that the order of suspension of jail sentence of appellant no.1 was not passed only on the ground of no seizure from the possession of the appellant but other facts and circumstances were also considered. He urged that the grounds for grant of bail

and cancellation of bail are different. The bail can be cancelled only on three following grounds:-

1) Misuse of liberty.

2) Violation of bail condition.

3) No opportunity of hearing was afforded to the State Government.

The case of the respondent does not fall in any above ground, therefore, the application for cancellation of jail sentence of appellant no.1 is liable to be rejected.

I have heard learned counsel for the parties and upon perusal of the record and the evidence, I find that the main consideration for grant of jail sentence of the appellants were that nothing was seized from the possession of the appellants. But the seizure of pistol from appellant no.1 vide Exb.P/19 was not brought to the notice of the court, which has been duly proved by the testimony of PW-20 PS Tomar and independent witness PW-17 Dinesh. Apart from that, ballistic report Exb. P-30 was also not brought to the notice of this court which has proved that the seized pistol from the appellant was found to be in working condition and fire was made from the said pistol.

In the light of aforesaid evidence, the testimony of Ritesh PW-6, Ritesh Nath PW/7 and Ravi PW-8 are considered. It is established that the appellant no.1 fired on Ritesh and luckily he escaped, which does not cause any injury to Ritesh but the facts and evidence of the case clearly establish that the present appellant fired on Ritesh with an intention to kill him.

In the case of Kanwar Singh Meena Vs. State of Rajasthan reported in (2012) 12 SCC 180, the Apex Court while laying down the principles for cancellation of bail held that if the court has granted bail ignoring the relevant material indicating prima facie involvement of the accused or takes into account

irrelevant material which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice. The relevant para no.10 is reproduced as under :-

"10. ............While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course o f justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting b a i l s u f f e r s f r o m s e r i o u s infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of t h e accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. S u ch o rd e r s are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such a s the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court o r the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact o n the society.......... "

In view of the aforesaid, I find that the jail sentence of the appellant no.1 Mayank Jat was granted without proper appreciation of facts and evidence and on wrong submission made by counsel for the appellant that there was no seizure of any pistol from appellant no.1, and therefore, the order dated 21.12.2022 granting suspension of jail sentence to the appellant no.1 Mayank Jat is cancelled.

The trial court is directed to take necessary steps in accordance with law

to arrest the appellant no.1 Mayank Jat.

The Registry is directed to send a copy of this order to the concerned trial court.

(VIJAY KUMAR SHUKLA) JUDGE

Sourabh